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Transforming Sentencing? Gender Identity, Prisons, and Canadian Criminal Law

Monday, October 7, 2013

Transforming Sentencing?

Gender Identity, Prisons, and Canadian Criminal Law

By: Kyle Kirkup, University of Toronto Faculty of Law

In Canada, sentencing is an individualized process. To determine what a fit sentence looks like in a particular case, judges are, among other things, tasked with weighing aggravating and mitigating factors and considering both objective and subjective factors related to the offender’s profile.

Should judges in Canada consider an offender’s transgender status as part of the sentencing inquiry? Moreover, as institutions rigidly segregated on the basis of sex, should judges take notice of the harassment, violence, and sexual assaults that are all too-often experienced by transgender people in Canadian prisons? These questions have yet to be explored by legal academics in Canada.

In the groundbreaking August 2013 decision of the Supreme Court of Nova Scotia in R v MacDonald, however, the answer to both questions appears to be yes.

In the decision, Justice Nick Scaravelli weighed traditional principles of sentencing — namely, denunciation and general deterrence — against the “offender’s unique personal circumstances” as a transgender man (para 15). He further noted that he was “cognizant of the possibility that the offender’s transgender identity could result in personal difficulties if placed in a correctional facility” (para 16).

As I will explain, the decision in MacDonald is a victory, albeit a partial one, in improving the lived realities of transgender Canadians. But more work — both inside and outside the criminal justice system — is required to secure a more equal future for members of transgender communities.

In February 2013, the police executed a search warrant at the residence occupied by Josiah Dean MacDonald, a 25 year-old transgender man, where they seized 46 cannabis plants. MacDonald did not own the residence — he was looking after the plants in exchange for money from the owner. When confronted by the police, he immediately gave them the name of the owner of the operation, who was later charged with several drug-related offences (para 8).

MacDonald was found guilty of producing marijuana contrary to section 7 of the Controlled Drugs and Substances Act. Due to legislative amendments that came into force in November 2012, the offence now carries with it the maximum sentence of 14 years imprisonment. While the Crown in the case recommended a 30-day custodial sentence, the “unique circumstances of this case” led Justice Scaravelli to sentence MacDonald to a fine of $1,000 and 12 months probation (para 6).

As part of his analysis, Justice Scaravelli considered the underlying factors that led MacDonald to commit the offence in this first place — MacDonald had been diagnosed with Chron’s disease and was using the marijuana “to help with the painful effects” (para 6). In addition, at the time of the offence, Nova Scotia was one of only a handful of provinces in Canada that refused to fund gender-affirming surgery. MacDonald explained that he intended to use the money raised by looking after the marijuana plants to “assist in payment for surgery for a double mastectomy” (para 7). As Justice Scaravelli noted in the decision, four months after MacDonald’s arrest, the Nova Scotia provincial government agreed to begin funding gender-affirming surgery, implying that MacDonald may not have committed the offence at all had the government started funding the procedure earlier.

The decision in MacDonald is a victory for transgender Canadians. Justice Scaravelli recognized that, in determining what a fit sentence looks like, an offender’s transgender status constitutes an important factor to consider for at least two reasons.

First, being attentive to an offender’s transgender status as part of the sentencing inquiry may help the judge appreciate the underlying reasons why the individual committed the offence in the first place. There is a considerable body of empirical evidence to suggest that transgender Canadians experience high levels of poverty, harassment, and violence. As Dean Spade notes in Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law, such factors increase transgender “participation in criminalized work to survive, which, combined with police profiling, produces high levels of criminalization” (89).

Second, echoing the analysis offered by Justice Louise Arbour in Commission of Inquiry into Certain Events at the Prison for Women in Kingston, the decision is attentive to the ways in which an offender’s sentence will actually be experienced once it moves from the courtroom to the prison. In an administrative system that rigidly segregates individuals on the basis of sex, it seems wholly appropriate to consider how those who are not readily classified will actually experience their custodial sentence. There is strong evidence to suggest that transgender people face “severe harassment, medical neglect, and violence” while in prison (Spade, 89). Many of these stark realities are documented in Kavanagh v Canada, a case where a transgender woman successfully brought a human rights complaint against the Corrections Service of Canada.

At the same time that we should applaud the decision in MacDonald, however, it is important that we not assume that reforming aspects of the criminal justice system will ever be a panacea for transgender equality. The decision in MacDonald, it seems, does little to address the high levels of poverty, harassment, and violence experienced by transgender Canadians on a daily basis. At best, the decision and others like it may help to reduce some of the harms associated with a system that continues to disproportionately criminalize and incarcerate the most vulnerable members of our communities. While acknowledging some of the underlying forces that brought MacDonald into conflict with the criminal justice system in the first place, the decision simply cannot redress these lived realities in a meaningful way.

This leads me to conclude that more work must be done to secure a more equal future for transgender Canadians. A broader, more far-reaching vision of reform, it seems, can only occur far outside the narrow parameters offered by reforming the Canadian criminal justice system.

Kyle Kirkup is a 2013 Trudeau Foundation Scholar and doctoral candidate at the University of Toronto Faculty of Law. He also holds degrees from Yale Law School (LLM, 2012), the University of Ottawa’s Faculty of Law (JD, 2009) and the College of the Humanities at Carleton University (BHum, 2006). Kyle served as a law clerk to the Honourable Madam Justice Louise Charron at the Supreme Court of Canada in 2010-11. He writes about criminal law, sentencing, sexuality, and gender identity.